TMI Blog2017 (4) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... directions and enhanced the transfer pricing adjustment made by the Transfer Pricing Officer ('TPO') contrary to Section 144C(11) the Income-tax Act, 1961 ('the Act') and against the principles of natural justice. 2. On the facts and in the circumstances of the case, the learned TPO has erred in making an upward adjustment of ₹ 14,78,97,525/- to the income of the appellant earned on account of provision of non-binding investment advisory services to its Associated Enterprises and the learned Assessing Officer ('AO') and DRP has erred in further enhancing the adjustment to ₹ 25,13,431266/-. 3. On the facts and ill the circumstances of the case, the learned AO/ TPO has erred in passing an order not in accordance of Section 92C(3) of the Act and the DRP has erred iii confirming the approach adopted by the AO/ TPO. 4. On the facts and in the circumstances of the case, the learned TPO and the learned AO have erred in making and the DRP has erred in confirming the approach adopted by the learned AO/ TPO, who have disregarded the benchmarking analysis conducted, search filters applied and the comparable companies selected by the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned AO have erred in making and the DRP has erred in confirming the action of the learned AO/ TPO of not allowing appropriate adjustments in accordance with the provisions of Rule IOB(1)(e)(iii) of the Rules to account for difference between international transactions and the alleged comparable uncontrolled transactions selected by the learned AOITPO. 11. On the facts and in the circumstances of the case, the finding of the TPO and the DRP that the Appellant has failed to show the difference in the level of risks borne by it as compared to the comparable cases is erroneous, incorrect and contrary to record. Your Appellant prays that the finding be set aside and the risk adjustment prayed for be granted. 12. On the facts and in the circumstances of the case, the learned TPO and the learned AO have erred in making and the DRP has erred in confirming the approach of the AO/ TPO to disregard the use of multiple year data, especially for preceding financial years (viz. FY 2007-08 and FY 2008-09) as permitted under the provisions of Rule I01)(4) of the Rules as elaborated in the TP study. 13. On the facts and in the circumstances of the case, the learned AO has e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscipline. 6. Now, we shall deal with the three comparables one by one as has been dealt by Tribunal in the aforesaid order. Motilal Oswal Investment Advisers Pvt. Ltd. 7. The assesse has objected to the inclusion of this company as a comparable on the ground that the said company is registered with SEBI as a merchant banker whereas the assessee is merely an investment advisor. Therefore, the said company cannot be taken as comparable to the assessee. It is noted that this issue has already been dealt with by the Tribunal in the aforesaid order wherein it has been held that the aforesaid company is not comparable to the assessee and, therefore, the same was directed to be excluded with the following observations:- 38 Ld. Authorised Representative objecting to the inclusion of this company as a comparable submitted, it is registered with SEBI as a merchant banker, hence, it cannot be considered as a comparable to the assessee. In this context, learned Authorised Representative relied upon the following decisions:- i) DCIT v. Warburg Pincus India P. Ltd., ITA no. 3840/Mum/ 2009, A.Y. 2005-06 etc., order dated 29.7.16 ii) Carlyle India Advisory Pvt. Ltd. v/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliance upon the decision of the Tribunal in the case of TA Associates Advisory Pvt Ltd vs DCIT (ITA No.496/Mum/2015) dated 22-01-2016 for AY 2010-11. It was brought to our notice that this decision has been passed for AY 2010-11 relying upon the judgement of Hon ble Bombay High Court in the case of CIT vs Carlyl India Advisors Pvt Ltd 32 Taxman.com 23 (Bom). It was also brought to our notice that the said decision was authored by the AM. We have carefully gone through the decision and find that this issue has been threadbare discussed before arriving at the conclusion that the said company is a merchant banker and, therefore, cannot be compared with the company engaged in the business of pure advisors. Thus, respectfully following the orders of the Tribunal, the said company is directed to be excluded from the list of comparables. ICRA Management Consulting Services Ltd IDC India Ltd. 9. It has been brought to our notice that both the above said comparables have been accepted to be included in the list of comparables by the Tribunal in the aforesaid order. It is noted that the Tribunal gave following observations while directing to accept the above companies as comparables ..... X X X X Extracts X X X X X X X X Extracts X X X X
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